Our high impact litigation on behalf of workers has affected thousands of persons by providing for damages and declaratory relief. As a result of settlements and litigation, the courts have awarded millions of dollars to workers. We continue to engage in high impact litigation with a focus on ensuring fair implementation of the guest worker/H-2B visa program targeting our core population. Through a combination of program strategies: individual direct legal services, community education, advocacy with the legislative and executive branches, and high impact litigation with the courts, we ensure the legal rights of our clients.
Potential Impact: In excess of half a billion dollars in increased wages for both U.S. workers and temporary foreign workers.
HISTORY OF THE LITIGATION:
In early 2009, Friends of Farmworkers, together with co-counsel, filed an Administrative Procedure Act challenge against the U.S. Department of Labor and U.S. Department of Homeland Security concerning newly issued regulations governing the H-2B temporary non-agricultural worker program. Friends of Farmworkers represents the Comité de Apoyo a los Trabajadores Agrícolas (CATA) and an individual H-2B worker in this litigation. This litigation resulted in an extensive Memorandum and Order on cross motions for summary judgment. See Comité de Apoyo a los Trabajadores Agrícolas v. Solis, 2010 U.S. Dist. LEXIS 90155, August 30, 2010. Judge Louis Pollak of the Eastern District of Pennsylvania, sustained several of the central challenges by Plaintiffs to DOL’s regulation of the H-2B program.
Most significantly, the Court:
(1) invalidated DOL’s regulations permitting “job contractors” who were not the actual employers of workers from submitting H-2B applications without joint applications with the actual employers;
(2) upheld Plaintiffs’ challenges to the methodology for determining prevailing wage rates and ordered DOL to promulgate regulations addressing these issues within 120 days;
(3) invalidated DOL’s definition of full time employment.
In January of 2011 the DOL published a final rule for the H-2B wage rate methodology that by DOL’s estimate would result in an average increase in wages to all workers employed by H-2B employers of $4.38 per hour.
Although no employers had sought to intervene in the original legal proceedings, lawsuits were filed in the fall of 2011 in the Western District of Louisiana and the Northern District of Florida by employer organizations, seeking to challenge the DOL rules issued as a result of the CATA v. Solis decision.
With co-counsel from other states, CATA, through Friends of Farmworkers, successfully intervened in the challenge filed in the Western District of Louisiana and won an order from that Court transferring that litigation back to the Eastern District of Pennsylvania.
As of the end of 2012, litigation relating to these issues is continuing in multiple courts and the new DOL regulations are blocked from taking effect.
The impact of the Friends of Farmworkers advocacy on behalf of clients in relationship to the H-2B program is widely acknowledged nationally to have significantly reshaped the H-2B program and governmental regulation of that program. The nationwide impact of the increases in the prevailing wage rates, if permitted to go into effect, will be cumulatively in excess of half a billion dollars in increased wages for both US workers and temporary foreign workers.
Our Esteemed Co-Counsel: